CRIMINAL CASE NO. 393 OF 2010
COURT: On 27 June this year this defendant was arraigned on an indictment which contained two counts. Namely, the 1st count was attempted murder, contrary to Common Law and sections 159G and J(1)(a) of the Crimes Ordinance, Cap. 200. The 2nd count was arson with intent to endanger life, contrary to sections 60(2) and (3) of the Crimes Ordinance.
Both offences have a maximum penalty of life imprisonment.
The defendant pleaded guilty to the 2nd count and not guilty to the 1st count. This plea was accepted by the prosecution and at their request and with the consent of the defendant’s counsel, I ordered that the 1st count remain on the court file and not be proceeded with absent any approval from the court.
On that day a Summary of Facts was read and admitted by the defendant. It revealed a tragic tale which led to the defendant’s acts on 16 April last year.
In summary this is what transpired. The defendant is now aged 75 and born in 1936. One of those persons named as a victim in the 2nd count, was a lady, Kwan Chak-sin. She was then aged 62 and a divorced woman. She and the defendant commenced a relationship and co-habited together since 1987. They lived in a flat in Kowloon Bay with the two sons of her former marriage. At the time the relationship commenced those sons were 17 years of age and 6 years of age respectively.
Some time in 1989, Room 2106, Block A, Greenwood Garden, Sha Kok Street, Shatin, was purchased in Madam Kwan’s name for the sum of $450,000. To fund this purchase she took out a mortgage. She and the defendant and the two children of her former marriage moved in to those premises. The mortgage loan was fully repaid by the year 2005.
In 2008 Madam Kwan transferred ownership of the flat to one of her sons. Partly, she said, due to her failing health and also, it was suggested by her, that the defendant had been prevailing upon her to sell the flat with a view to obtaining some financial benefit.
In the year 2006 the defendant retired from his job as a beef hawker and at that time he gave a substantial part of his retirement fund to Madam Kwan. That sum of money was used thereafter for the purposes of extensive travels. Occasionally, from time to time, the defendant would ask Madam Kwan for money which was used for his own benefit.
In this period there were disputes as between the defendant and Madam Kwan. Many of those disputes, apparently, were related to their financial circumstances. It was as a consequence, it appears, that Madam Kwan travelled extensively throughout Canada, the United States of America and China, leaving the defendant with the two sons in Hong Kong.
Matters came to a head in early 2010. On 30 March of that year one of the sons returned to the flat which I have earlier referred to and found the defendant was present with an unknown female. That son informed the other son that he believed that the defendant had a prostitute inside the flat. They informed Madam Kwan of their suspicions.
It is a matter of some moment that the defendant at all times has denied that such was the case and that the lady concerned was nothing more than a considerate neighbour who had been from time to time providing him with food. Nevertheless, the two sons of Madam Kwan became angry and set about a course which would result in the defendant leaving these premises.
One of them spoke to Madam Kwan’s younger brother in Guangzhou, who apparently had a closer relationship with the defendant. The result of their discussions was that they set upon a course, a plan, which would result in the defendant being excluded from the flat. Madam Kwan returned to Hong Kong on 6 April 2010 and the plan was put into effect.
They came to this arrangement. Her younger brother would come to Hong Kong and arrange to lunch with the defendant. During the course of the absence of the defendant from the premises having lunch with Madam Kwan’s brother, she and the two sons would pack his belongings and have them sent to a relative who had a meat vending business nearby.
The plan was put into effect on 16 April 2010. At about 10 am that day Madam Kwan’s younger brother telephoned the defendant and invited him to have lunch at a restaurant near the Mongkok KCR Station. After the defendant had agreed to do this, he in turn informed Madam Kwan to start packing the defendant’s belongings.
Following this, that is precisely what happened. Madam Kwan and her son took a taxi, took along three bags containing the defendant’s property, which they took to a beef stall run by the defendant’s brother in Ngau Tau Kok. They informed him that they had decided to expel the defendant because he had brought a woman to the flat.
After they had left the defendant’s brother telephoned him and informed him what had taken place. Madam Kwan and one of the sons returned to the flat. In the meantime they had arranged for a bicycle chain to be placed across the iron gate to secure the premises to ensure that the defendant could not re-enter.
About 3.30 pm that afternoon, whilst Madam Kwan and her two sons were inside the premises, the defendant returned. Obviously, by reason of what had taken place he could not gain entry. He banged on the iron gate. One of the sons partially opened the wooden door and the defendant requested to be allowed to enter the premises. That request was refused.
He begged to be allowed to stay for a few more days, that request was refused. After arguing for some time, the defendant left the premises. Unfortunately, some 15 minutes later, one of the sons heard a noise at the door. Through the peep hole he could see the defendant was standing outside. He partially opened the door and noticed that the defendant himself had locked the front gate with yet another bicycle chain lock.
He shouted at the defendant who was pouring some liquid from a can onto the bottom part of the gate and door. The defendant did not stop and proceeded to ignite what was thinner, causing a fire which resulted in dense smoke entering the premises.
The son immediately closed the door and shouted for help. Assistance was requested. The fire was put out quite quickly and no one was injured, other than by reason of the fact of having suffered some smoke inhalation. Whilst the occupants were sent to the hospital for examination, they were discharged without further treatment.
That same afternoon the defendant surrendered himself to the police. He was arrested and under caution said this:
“Ah Sir, she took my flat and all my money and did not allow me to go home. I was so angry that I set fire to burn the woman and her two sons to death.”
The defendant was subsequently interviewed by the police on three separate occasions. It suffices to say that he admitted the offence which he ultimately pleaded guilty to.
He told the police that he went to purchase a can of thinner and a bicycle chain from a hardware shop that afternoon. He brought these back to Shatin and went up to the flat. He locked the door and ignited the thinner with a cigarette lighter. He left both the can of thinner and the lighter behind at the scene.
He told the police that after this he went to a nearby park. After giving the matter some thought he decided the best course open to him was to surrender to the police.
As to the flat itself the defendant told the police that he had consented to allow Madam Kwan to be the registered owner although he had contributed sums of money towards the down payment and monthly instalments of the mortgage.
He said in the course of his interviews that throughout the time of their cohabitation he paid significant amounts of money towards the household expenses. He said that he was aware that the flat had been transferred by Madam Kwan to her son, because he himself had conducted a land registry search in October 2008. He was also aware, he said, that the mortgage had been fully repaid prior to that date.
Those are the circumstances which gave rise to the charge. On 27 June I made orders that reports be prepared by a psychiatrist, a psychologist and a probation officer. I adjourned the further hearing of the sentencing of the defendant until 18 July.
On 18 July I had reports before me from Dr K W Chow, dated 5 July 2001, Dr W K Choi, dated 14 July 2011, both of whom are visiting psychiatrists and the Siu Lam Psychiatric Centre. In addition to that I had a report a Miss Daisy H M Yeung, a psychologist attached to the Correctional Services Department. Her report was also dated 14 July.
Doctors Chow and Tsui both concluded that the defendant did not suffer from any psychiatric disorder. What did emerge, however, is that subsequent to his surrender to the police he had on two occasions whilst in custody attempted to commit suicide.
Other relevant matters which emerged from those reports were that he had first married in 1962. That marriage was dissolved in 1982. There were of that union three adult children but the defendant had lost contact with them. Nevertheless, it also emerged that one of their children, that is to say the defendant’s granddaughter, had remained in contact with him.
The psychologist’s report was prepared after various tests had been undertaken by the defendant. And these tests were specifically designed to assess the risk of his violent recidivism. She also interviewed, as had both of the psychiatrists, Miss Ho, the defendant’s granddaughter.
What emerged from these reports was that the defendant regretted his conduct but at the same time felt betrayed by Madam Kwan and her sons, who he believed had conspired together to remove him from the home that they had shared for so long.
The psychologist assessment based on her impressions and the tests conducted, were that the defendant is a person with a low self-esteem and that Madam Kwan and her family were his primary source of companionship up until the events of 16 April 2010.
Miss Yeung said this. He experienced huge shock, a high level of anxiety and a strong sense of humiliation when he learnt that the girlfriend’s family had conspired to evict him from home. The offence might be viewed as a maladaptive reaction to ventilate his chronic frustration.
The psychologist concluded that overall the defendant was free from major psychopathology and his conduct on this occasion could properly be viewed as an isolated episode of violence precipitated by chronic stress.
She did not consider that his risk of re-offending was high. Ongoing counselling she considered was advisable as was the need to put in place support for his future, especially in the light of the fact of his age and his financial circumstances. The probation officer’s report on that occasion provided similar background information.
On 15 July 2011 Mr Wong, counsel on behalf of the defendant, placed before me two letters from a Miss Ho Ka-yu, the defendant’s granddaughter, and who is by occupation an assistant social worker. She has previously spent time with the defendant before this incident and has regularly visited him since his arrest.
She has volunteered to provide care and accommodation for the defendant upon his release from custody. She has suitable accommodation for both of them in Sham Shui Po and has some time ago applied for public housing benefits. It is her intention, if the defendant is released, for him to remain with her wherever it is that she is accommodated.
I was also given a letter from Mr Lee Man-fong of the Christian Prison Pastoral Association, who is also a chaplain appointed by the Correctional Services Department. The Christian Pastoral Association provides, amongst other things, support for discharged prisoners. Mr Lee has been in regular contact with the defendant since his remand in custody. He, like Miss Ho, has indicated his willingness to provide assistance and support to the defendant when he is released.
Given all of the above I requested that a further probation officer’s report be prepared which specifically addressed what arrangements could be put in place for the defendant after his release. On 10 August 2011 Mr Y C Cheng filed a supplementary report. He has again spoken with the defendant’s granddaughter and also Mr Lee.
It is apparent that their combined resources and expertise will be able to provide for the defendant support and accommodation, both emotionally and financially.
As I have indicated I am persuaded that it is appropriate to adopt an exceptional course in this matter. And allow the defendant to be released on probation.
This is not to derogate from the very serious nature of the offence which he has pleaded guilty to. The offence and the manner in which it was perpetrated by this defendant would in the normal course of events justify a lengthy period of incarceration, irrespective of a plea of guilty to the charge. Nevertheless, in the circumstances of this case I am prepared to adopt the course I have indicated.
The defendant is 75 years of age. His prognosis is good. There is support and assistance available to him. I do not consider that he, nor society, will benefit from his being further detained in custody.
His behaviour on this occasion was deplorable. It is said on his behalf that there was provocative conduct by those with whom he had previously lived. Nevertheless, that conduct, even if it were correct in every respect, did not in any manner or form justify his behaviour on this occasion.
The period of probation will be 2 years. There will be a specific condition that he is to reside together with his granddaughter, Miss Ho Ka-yu, at whatever premises she might then be occupying. Or in the event that it is deemed appropriate at such premises as are directed by the supervising social worker.
The second condition will be that the defendant abide by such directions as to counselling as the supervising social worker may deem appropriate. The usual orders with the usual conditions with respect to good behaviour obviously apply.
Those are the orders I will make.